APPENDIX IZ
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APPENDIX II
—
Departmentof Energy
Washington, D.C. 20545
December 28, 1978
Mr. J. Dexter Peach
Director
Exergy and Materials Division
General Accounting Office
Washington, D.C. 20548
Dear Mr. Peach:
We appreciate the opportunity to review aud commence on che GAO drafrc
repore encitled "Observations On The Projece To Cleanup, Rehabilicace
And Resetrle Enewecak Atoll." Our views with respece co the draft
report and the recommendations contained therein follow:
1.
The draft report notes in several places that the potencial exists
tor fucure legal difficulties because of loss of land, loss of land
usage, loss of cash crops, and the absence of long-cerm agreements
with the people of Enewetak. In Chapter 3 the report vaguely indicates chat the iegal difficulties would be in the nature of clains
against che-United States.
However, the report does not elaborate
on this point.
There is no indication under what auchority such
claims could be made.
Under the Federal Tort Claims Act, any claims arising ouc of a discrecionary funceion of the Government (28 USCA 2680 (a)) or “in a
foreign country" (28 USCA 2680(«)) are specifically excluded from
coverage by the Act. Of course, the most obvious of these as far
as claims from the people of Enewetak goes would be the foreign
country exclusion. The courcs have held chat che phrase “in a foreign country” in Sec. 2680(k) is used with che meaning dictated by
common sense and common speech.
Places that have been held by the
courts to censtitute a “foreign country” wichin the con:emplacion of
the exclusisn include che Pacific Islands of Okinawa, Saanan, and ©
Kwajalein.
[tc is, therefore. reasonable co assime chat Enewetak
would almost surely come within the exclusion.
The legisiative history sf the Federal Tors
Clains Act discioses
that Congress excluded claims arising “in a foreign country” because
lizbility under the act was to be determined “in accordance with che
Law - of che
place- where
che .act 3
or cmission
occurred’
and Congresstm
ettida
_
om
Shame ties
tr
Was unWillinz
¢t2 subject che Uniced Seaces to liabilisies depencing
upen the iaws of a fsreign sower.''
5001516
25
Indeec, Congress has expressed